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Exhibit 10.114
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is entered into as of
March 31, 1997, between Unison HealthCare Corporation, a Delaware corporation
(the "Company"), and Xxxxx X. Xxxxxxx, a director of the Company (the
"Indemnitee").
RECITALS
WHEREAS, it is essential to the Company to retain and attract
as employees, directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director of the Company and has been
asked to perform services for the Company in his capacity as such pursuant to
the Services Agreement between the Company and the Indemnitee dated as of March
31, 1997 (the "Services Agreement"); and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's service
to the Company in an effective manner, the Company wishes to provide in this
Agreement for the indemnification of, and the advancing of expenses to,
Indemnitee to the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and for coverage of Indemnitee under the
Company's liability insurance policies.
THEREFORE, in consideration of Indemnitee agreeing to serve as a
director of the Company and to enter into the Services Agreement, and intending
to be legally bound hereby, and for other good and valuable consideration, the
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Certain Definitions:
(a) Action: any threatened, pending or completed action, suit
or proceeding, or any inquiry or investigation, whether conducted by the Company
or any other party, that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(b) Change in Control: shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding Voting
Securities (as defined below), or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the
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Board of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, or (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the total voting
power represented by the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all the Company's
assets.
(c) Derivative Action: an Action by or in the right of the
Company.
(d) Expenses: include reasonable attorneys' fees, court costs,
deposition costs, court reporter fees, travel and all other costs, expenses and
obligations actually paid to another or incurred in connection with
investigating the facts underlying the Action, preparing to defend and defending
the Action or preparing for and participating in the Action as a witness, or any
of the foregoing expenses incurred on appeal, or any other reasonable expenses
incurred by Indemnitee in participating in any Indemnifiable Action or
Indemnifiable Derivative Action.
(e) Indemnifiable Action or Indemnifiable Derivative Action:
any Action or Derivative Action arising out of or relating, directly or
indirectly, to the fact that Indemnitee is or was a director, employee, agent or
fiduciary of the Company, or a subsidiary of the Company, or is or was serving
at the request of the Company as a director, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(f) Potential Change in Control: shall be deemed to have
occurred if (i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or to consider
taking actions which if consummated would constitute a Change in Control; (iii)
any person other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company who is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's then
outstanding Voting Securities, increases such person's beneficial ownership of
such securities by five percentage points (5%) or more over the percentage so
owned by such
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person; or (iv) the Board of Directors adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change in Control has occurred.
(g) Voting Securities: any securities of the Company which
vote generally in the election of directors.
2. Indemnification For Actions Other Than Derivative Actions. If
Indemnitee was, is, or becomes a party to or a witness or other participant in,
or is threatened to be made a party to or witness or other participant in, an
Indemnifiable Action other than an Indemnifiable Derivative Action, the Company
shall, subject to the provisions of this Agreement, indemnify Indemnitee to the
fullest extent permitted by law against any and all Expenses, judgments, fines,
penalties, and amounts paid in settlement of such Action.
3. Indemnification For Derivative Actions.
(a) Basic Indemnification. If Indemnitee was, is, or becomes a
party to or a witness or other participant in, or is threatened to be made a
party to or witness or other participant in an Indemnifiable Derivative Action,
the Company shall, subject to the provisions of this Agreement, indemnify
Indemnitee to the fullest extent permitted by the Delaware General Corporation
Law against any and all Expenses, but not judgments, fines, or, except as set
forth below, amounts paid in settlement of such Derivative Action.
(b) Adjudication of Liability in Derivative Actions.
Notwithstanding Paragraph 3(a), no indemnification shall be made in respect of
any claim, issue, or matter as to which Indemnitee shall have been adjudged (by
final judicial determination from which there is no further right to appeal) to
be liable to the Company unless and only to the extent that the court in which
such Derivative Action was brought shall determine upon application by
Indemnitee that despite the adjudication of liability and in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnification which such court shall deem proper.
(c) Settlement of Derivative Actions. Notwithstanding
Paragraph 3(a), the court in which such Derivative Action was brought may
determine upon application of Indemnitee that, in view of all circumstances of
the case, indemnity for amounts paid in settlement is proper and may order
indemnity for the amounts so paid in settlement and for the Expenses actually
and reasonably paid in connection with such application, to the extent the court
deems proper.
4. Limits on Indemnification. Except as stated in Paragraph 5, there
shall be no indemnification pursuant to this Indemnification Agreement:
(a) to the extent that payment for the same claims or amounts
are actually made to the Indemnitee under a valid and collectible insurance
policy; provided, however, that
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if it should subsequently be determined that the Indemnitee is not legally
entitled to retain any such payment, the restriction on indemnification pursuant
to this subparagraph (a) shall no longer apply;
(b) to the extent that the Indemnitee is indemnified or
receives a recovery for the same claims or amounts otherwise than pursuant to
this Indemnification Agreement; provided, however, that if it should
subsequently be determined that the Indemnitee is not legally entitled to retain
any such recovery, the restriction on indemnification pursuant to this
subparagraph (b) shall no longer apply;
(c) to the extent that the Indemnitee is held, by a court of
competent jurisdiction in a final judgment from which there is no further right
to appeal, to have violated Section l6(b) of the Securities Exchange Act of
l934, as amended, and rules promulgated thereunder;
(d) to the extent that the Indemnitee is held, by a court of
competent jurisdiction in a final judgment from which there is no further right
to appeal, to have violated Section l0(b) of the Securities Exchange Act of
l934, as amended (the "Exchange Act"), and any rules promulgated thereunder, or
similar state law, to the extent that such violation is based on (i) the
purchase or sale of a security by Indemnitee or a person affiliated with
Indemnitee while Indemnitee is in possession of material nonpublic information
about the Company, or (ii) the communication of material nonpublic information
about the Company in connection with any transaction on or through the
facilities of a national securities exchange or from or through a broker or
dealer, other than as part of a securities offering by the Company;
(e) with respect to any transaction from which the Indemnitee
is held, by a court of competent jurisdiction in a final judgment from which
there is no further right to appeal, to have derived an improper personal
benefit to which he is not legally entitled;
(f) for the return of any remuneration paid to the Indemnitee
that is held, by a court of competent jurisdiction in a final judgment from
which there is no further right to appeal, to have been illegal or improper;
(g) to the extent that an act or omission of the Indemnitee
(i) was not in good faith, or (ii) involved intentional misconduct or a knowing
violation of law; or
(h) if in a final judgment from which there is no further
right to appeal a court of competent jurisdiction in the matter shall have
determined that such indemnification is not lawful.
5. Partial and Mandatory Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company of some or a
portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement of an Action but not for the total
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amount, the Company shall indemnify Indemnitee for the portion to which
Indemnitee is entitled. To the extent that Indemnitee has been successful on the
merits or otherwise (including dismissal with or without prejudice) in defense
of any Indemnifiable Action or Indemnifiable Derivative Action, or in defense of
any claim, issue or matter therein, he or she shall be indemnified against
Expenses actually and reasonably incurred by him in connection therewith, except
as stated in Paragraph 4(a) or 4(b).
6. Notification of Indemnifiable Action or Indemnifiable Derivative
Action. Indemnitee shall promptly notify the Company of any Indemnifiable Action
or Indemnifiable Derivative Action promptly after receipt by Indemnitee of
notice of the commencement of such Indemnifiable Action or Derivative Action.
With respect thereto:
(a) The Company will be entitled to participate therein at its
own expense.
(b) Except as otherwise provided below, the Company jointly
with any other indemnifying party may assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee to be chosen or approved by the Company.
After notice from the Company to Indemnitee of its election to so assume the
defense thereof, the Company will not be liable to Indemnitee for any legal or
other expenses subsequently incurred by Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or participation in
any Action or Derivative Action (including travel expenses) or as otherwise
provided below. Indemnitee shall have the right to employ independent counsel in
such Action or Derivative Action; however, the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless:
(i) the employment of independent counsel by
Indemnitee has been authorized by the Company;
(ii) counsel employed by the Company to represent the
Indemnitee shall have reasonably concluded that there may be a conflict
of interest in the conduct of the defense of such action that prevents
such counsel from representing Indemnitee; or
(iii) the Company shall not in fact have employed
counsel to assume the defense of such Action or Derivative Action on
behalf of Indemnitee.
The fees and expenses of independent counsel of Indemnitee in subparagraphs
6(b)(i), (ii) and (iii) shall be borne by the Company.
(c) If the Company has assumed the defense of the Indemnitee
pursuant to subparagraph (b) above, the Company shall not be liable to indemnify
Indemnitee under this Agreement for any amount paid in settlement of any Action
or Derivative Action effected
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without its written consent, the Company shall not settle any Action or
Derivative Action in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent, and neither the Company nor
Indemnitee will unreasonably withhold their consent to any proposed settlement.
7. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written request of
Indemnitee shall fund such trust in an amount sufficient to satisfy any and all
Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Indemnifiable
Action or Indemnifiable Derivative Action, and any and all judgments, fines,
penalties and settlement amounts of any and all Indemnifiable Actions or
Indemnifiable Derivative Action from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid; provided, however, that in no
event shall more than $250,000 be required to be deposited in any trust created
hereunder in excess of amounts deposited in respect of reasonably anticipated
Expenses. The terms of the trust shall provide that upon a Change in Control (i)
the trust shall not be revoked or the principal thereof invaded without the
written consent of the Indemnitee, (ii) the trustee shall advance, within ten
(10) business days of a written request by the Indemnitee, any and all Expenses
to the Indemnitee (and the Indemnitee hereby agrees to reimburse the trust under
the circumstances under which the Indemnitee would be required to reimburse the
Company under Section 8(b) of this Agreement), (iii) the trust shall continue to
be funded by the Company in accordance with the funding obligation set forth
above, (iv) the trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise, and (v) all unexpended funds in such trust shall revert to the
Company upon a final determination by the Indemnitee or a court of competent
jurisdiction, as the case may be, that Indemnitee has been fully indemnified
under the terms of this Agreement. Trustee shall be chosen by the Board of
Directors. Nothing in this Section 8 shall relieve the Company of any of its
obligations under this Agreement.
8. Advance of Expenses; Failure to Pay Claim.
(a) Written Request. If so requested by Indemnitee in writing,
the Company shall (subject to the provisions of this Agreement) advance to
Indemnitee (an "Expense Advance") any and all Expenses incurred in connection
with the investigation and preparation of the Indemnitee's participation in any
Indemnifiable Action or Indemnifiable Derivative Action, whether as a witness or
a party, pursuant to this Agreement. The Company shall comply with the
Indemnitee's written request for an Expense Advance within ten (10) business
days of receipt of such written request together with the reimbursement
commitment referred to in subparagraph (b) below. If the Company does not honor
Indemnitee's request for an Expense Advance, Indemnitee may bring an action in
any court of competent jurisdiction to enforce the right to an Expense Advance,
and the Company shall have the burden of proof in such action to demonstrate
that the Expense Advance is not payable.
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(b) Reimbursement by Indemnitee. The obligation of the Company
to make an Expense Advance shall be subject to the condition that, if it is
ultimately determined (by final judicial determination from which there is no
further right to appeal) that there are matters to which Indemnitee is not
entitled to indemnity under this Agreement, the Company shall be entitled to be
reimbursed by Indemnitee for all such amounts. Prior to obtaining the initial
Expense Advance, Indemnitee must confirm such reimbursement obligation by
delivery to Company of a signed undertaking in the form of Exhibit A or in such
other form as Company may reasonably accept.
(c) Expense Advance Rules. Expenses in all cases must be
reasonable and comply with existing or future billing procedures of the Company
so that the Company can reasonably monitor and audit such Expenses. With respect
to attorneys' fees, the Company will give reasonable consideration to requests
for specific counsel and to requests for the grouping of individuals for joint
defense purposes. Any attorney representing more than one individual may be
requested to render separate statements to each individual or otherwise allocate
xxxxxxxx by individual.
(d) Failure to Pay Claim. If loss has been incurred and a
claim for indemnification under this Agreement is not paid by the Company within
ten (10) business days after a written claim has been received by the Company,
Indemnitee may at any time thereafter bring suit against the Company to recover
any unpaid amount of the claim.
9. Burden of Proof. In connection with any determination as to whether
Indemnitee is entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
10. No Presumption. For purposes of this Agreement, the termination of
any action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not payable under this Indemnification
Agreement or permitted by applicable law.
11. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall
be in addition to any other rights Indemnitee may have under the Company's
Certificate of Incorporation, or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company's Certificate of
Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
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12. Liability Insurance. From the date of this Agreement until
Indemnitee ceases to serve as a director of or in any other capacity with the
Company and, if such coverage is on a "claims made" rather than an "occurrence"
basis, for a period of three years thereafter, the Company will use its best
efforts to procure and maintain directors' and officers' liability insurance
under which Indemnitee is an insured person in such amounts and on such terms as
are the same in all material respects as those that exist under insurance
policies in effect (including those in effect pursuant to binders) as of the
date of this Agreement. The Company will provide Indemnitee with copies of
directors' and officers' liability insurance policies procured and will provide
him with notices received from the carrier of such insurance regarding changes
to his status as an insured person under such policies.
13. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action such
shorter period shall govern.
14. Amendments and Waiver. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto; provided, however, that if any provision of this Agreement is
challenged as being unlawful, the parties agree that the court in which such
challenge is litigated may modify such provision so that it is enforceable to
the maximum extent permitted by law and may enforce the Agreement as so
modified. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
15. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
16. Binding Effect. Etc. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, heirs, and assigns.
17. Termination by Company. This Agreement shall continue in full force
and effect, regardless of whether Indemnitee continues to serve as an employee,
officer or director of the Company or any other enterprise at the Company's
request, unless terminated pursuant to this Paragraph. By giving written notice
to Indemnitee at his or her address according to Company records, the Company,
prior to a Potential Change of Control or Change of Control,
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may terminate its obligations under this Indemnification Agreement as to any act
or omission of Indemnitee after such written notice is given. Notice is deemed
given when actually received or two days after being sent by registered or
certified mail, whichever is earlier
18. Severability. The provisions of this Agreement shall be severable
and, in the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law,
including the provisions that have been modified by a court pursuant to
Paragraph 14 hereof.
19. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts and the indemnification rights of directors and officers made and to
be performed in such state without giving effect to the principles of conflicts
of laws.
20. Prior Agreements. This Agreement supersedes all prior
Indemnification Agreements between the Company and Indemnitee.
UNISON HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: EVP/COO
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
XXXXX X. XXXXXXX INDEMNITEE
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EXHIBIT A
________ ____, l9__
Unison HealthCare Corporation
Attention: Chief Executive Officer
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
RE: INDEMNIFICATION AGREEMENT DATED MARCH 31, 1997 (THE "AGREEMENT")
Gentlemen:
I am the beneficiary of the above Agreement and am a defendant,
witness, or other participant in the following legal action(s):
__________________________________________. A copy of the Complaint in this
action is attached for your information.
Pursuant to Paragraph 8 of the Agreement, I hereby request that Unison
HealthCare Corporation advance my Expenses as such term is used in the
Agreement, subject to the Expense Advance Rules, as such Rules are applied in
the Agreement. I hereby confirm that I will reimburse Unison HealthCare
Corporation for all the amounts advanced to me that are ultimately determined
(by final judicial determination from which there is no further right to appeal)
to be associated with matters to which I am not entitled to indemnity under the
Agreement.
If any additional information is needed, my address and telephone
number are listed below:
Address:
Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone Number:
000-000-0000
Very truly yours,
